People v. Neely, Nos. C023551

CourtCalifornia Court of Appeals
Writing for the CourtMORRISON; BLEASE, Acting P.J., and RAYE
Citation70 Cal.App.4th 767,82 Cal.Rptr.2d 886
Parties, 71 Cal.App.4th 482C, 1999 Daily Journal D.A.R. 2281 The PEOPLE, Plaintiff and Appellant, v. Charles Frederick NEELY, Defendant and Respondent. The People, Plaintiff and Respondent, v. Charles Frederick Neely, Defendant and Appellant.
Decision Date09 March 1999
Docket NumberNos. C023551,C024936

Page 886

82 Cal.Rptr.2d 886
70 Cal.App.4th 767, 71 Cal.App.4th 482C,
1999 Daily Journal D.A.R. 2281
The PEOPLE, Plaintiff and Appellant,
v.
Charles Frederick NEELY, Defendant and Respondent.
The People, Plaintiff and Respondent,
v.
Charles Frederick Neely, Defendant and Appellant.
Nos. C023551, C024936.
Court of Appeal, Third District, California.
March 9, 1999.
As Modified on Denial of Rehearing April 8, 1999.
Review Denied June 23, 1999.
Certified for Partial Publication. *

Page 889

[70 Cal.App.4th 772] Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger, W. Scott Thorpe, William G. Prahl and Ward A. Campbell, Deputy Attorneys General for Plaintiff and Appellant and Plaintiff and Respondent.

Mark D. Greenberg, Under appointment by the Court of Appeal, Oakland, for Defendant and Respondent and Defendant and Appellant.

MORRISON, J.

After two earlier felony convictions and prison terms, defendant Charles Frederick Neely committed his first robbery-murder in 1956. (People v. Neely (1958) 163 Cal.App.2d 289, 329 P.2d 357.) After completion of his "life" sentence (his second) he was loosed upon the populace in 1975 and thereafter committed a home-invasion robbery-murder on March 15, 1982. (People v. Neely (1993) 6 Cal.4th 877, 26 Cal.Rptr.2d 189, 864 P.2d 460.)

The authorities turned a codefendant, Malcolm Centers, against defendant and arranged for a taped conversation between them (the van tape). [70 Cal.App.4th 773] Defendant was sentenced to death, but the California Supreme Court vacated his conviction on the ground that the authorities had violated his right to counsel and his attorney failed to object to evidence adduced by the violation. (In re Neely (1993) 6 Cal.4th 901, 26 Cal.Rptr.2d 203, 864 P.2d 474.)

The case was remanded. Neely successfully moved to recuse the District Attorney's office, claiming bias in the decision to seek the death penalty a second time. The Attorney General filed a notice of appeal (CO23551) which automatically stayed the recusal

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order. (Pen. Code, § 1424, subd. (a)(1); further section references are to this code.) The case proceeded to trial. The trial court forbade the People from seeking the death penalty.

Defendant was convicted of murder, robbery and burglary. He had admitted a prior murder special circumstance and the jury found true robbery and burglary-murder special circumstances, but found not true gun use allegations. He was sentenced to a third "life" sentence, this time without possibility of parole. Defendant appealed (CO24936) and we consolidated the appeals. We shall vacate the recusal order, modify the judgment and affirm.

FACTS

Three men planned to burgle an occupied house in daylight. One of the homeowners was handcuffed and shot in the head during the burglary.

Defendant, a man in his 50's, and two young men, both in their 20's, Malcolm Centers and Monte Handley, planned to burgle Bruce Chester's safe and anticipated that he and his wife Barbara (Teater) Chester would be or might be home. Centers had agreed to do the crime at the behest of one Robert DeArkland, who was angry with Chester over a land deal and to whom Centers owed a large drug debt. Centers used and sold drugs; DeArkland was his source for cocaine, amphetamine and LSD and defendant was his source for marijuana and mushrooms. Centers used Handley (who was Black) to sell drugs to Blacks. Centers knew Bruce Chester and agreed to help steal some papers from Chester's safe because he was afraid of DeArkland. Defendant also knew Chester and had done work at his property. DeArkland told Centers that defendant would be part of the burglary team. On a later occasion he told Centers it would be better if Chester was dead.

Defendant, Centers and Handley met to discuss the job. Defendant was the leader. Centers would show them to the property, defendant would open the safe and Handley would steal other items to disguise the purpose of the burglary. They had guns, tape, gloves and a package with "Mrs. Bruce Chester" on it, in case they needed to employ a ruse. Handley had a [70 Cal.App.4th 774] .32 pistol and defendant had a .22 High Standard pistol; both carried handcuffs.

On the morning of the murder, Centers's live-in girlfriend woke up to find Handley and defendant in the kitchen; she heard defendant say "something about a gun jamming." Centers told her he was going to show defendant a house. She could not recall other events that she had once described to the authorities about that morning. She had used drugs until a few years before the retrial in 1996. However, she did remember talking to the authorities and being truthful. In that interview she said she heard the men talking about tying up a woman and knew they were going to break into a floor safe that DeArkland had told them about. The transcript of her statement indicates she described defendant's gun as a .22 "R uger." This may be a typographical error. An expert testified a L uger pistol resembles the High Standard.

On the morning of the murder the trio used defendant's wife's Chevrolet truck, which was white, and Centers's Ford Ranchero. Eventually, the group had breakfast at a restaurant in Cameron Park near the Chester house. They were noticed because of their composition (an older man with two younger men, one Black) and because they did not seem normal. Then Centers led them to the house. They watched the house with binoculars and knew Chester and his wife were there. They left and Centers unsuccessfully tried to get Chester to leave with a telephone call about drugs. The trio returned and as they approached Chester's house, Centers got out of the truck for fear of being recognized. Defendant and Bruce Chester spoke, then defendant left and picked up Centers. The three left so defendant could use a telephone, then drove back to the Chester home. Defendant and Handley dropped Centers off at the "waterfall house," which was near some property owned by Centers's father.

Page 891

As Chester prepared to leave for a meeting, Barbara Teater heard yelling and loud noises. At one point she heard her husband say " 'I'll take you to the safe.' And I heard a voice, a very mean voice say, 'Yeah, you take me to the safe. You take me to that safe or I'll blow your fucking head off.' " She hid, then decided to get help. She heard a loud bang, got into her car and drove away to call the police. She saw a man on the road by the "waterfall house," hiding his face. Peace officers arrived within four minutes of her call and saw two men run off.

Chester was found. He was handcuffed and dead. He was killed by a contact gunshot to the head and had another bullet wound high on his left arm; two .22 cartridge casings and three .22 bullets were found (one in a wall, one on the floor and one in Chester's brain). That only two cartridges [70 Cal.App.4th 775] were found corroborates the evidence about defendant's gun jamming: An expert testified that when a semiautomatic pistol jams, it may not eject the spent cartridge.

Handley and Centers were captured that day. Handley had some stolen property on him and a glove. The white truck (defendant's wife's truck) was in the Chesters's driveway. Gloves, pliers, rifle shells, a knife, shotgun shells, binoculars and tape were found in the truck, as was the "Mrs. Bruce Chester" box and a clip for a .22 caliber High Standard pistol. Handley's and Centers's fingerprints were on the white truck or its contents. Gloves and Handley's gun were found near the Chester house.

The morning after the murder, around 3 a.m., a firefighter heard noises in his station and found evidence that clothes had been ransacked. That night defendant broke into a vacant house near the firestation. Two days after that, on March 18, 1982, defendant emerged from a field and asked John Huntington for a ride to Sacramento. He recognized defendant and told his father, who captured defendant at gunpoint.

At one point while Centers sat on a bench in custody, defendant nodded to him and said " 'We had to shoot the bastard.' " Several weeks after the murder Teater heard defendant's voice sample in court and was able to identify it as the voice she heard during the crime.

Centers had been acquitted of the murder, but convicted of conspiracy to commit robbery. He sold drugs while on parole. At defendant's retrial, the instant case, Centers was severely impeached and the defense pointed to evidence that Centers was at the house. The defense attacked Teater's voice identification with expert testimony, which was rebutted by contrary testimony: The People's expert told the jurors their "intuitive theories are just as good as any conclusion you can draw from the research."

I.

The Attorney General contends the trial court abused its discretion in ordering recusal of the District Attorney's office. Defendant complains that the stay of the recusal order forced him to choose between his speedy trial rights and his due process right to an unbiased prosecution. We need not decide whether the automatic stay provision might work an injustice in some cases, because it did not here. The recusal order should not have been made. Further, due to subsequent events, the only purpose of the recusal was obviated, and defendant cannot show prejudice.

A.

A recusal order is reviewed under the abuse of discretion standard, which gives room for the exercise of judgment by the trial court. (People v. [70 Cal.App.4th 776] Eubanks (1996) 14 Cal.4th 580, 594-595, 59 Cal.Rptr.2d 200, 927 P.2d 310.) The trial court does not have discretion to depart from legal standards. (Bailey v. Taaffe (1866) 29 Cal. 422, 424.)

A motion to recuse "may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." (Pen.Code, § 1424, subd.

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(a)(1).) A "...

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45 practice notes
  • People v. Hoag, No. C031031.
    • United States
    • California Court of Appeals
    • September 28, 2000
    ...for it; it would have been found anyway; or the path from the illegality to the `fruit' is too `attenuated.'" (People v. Neely (1999) 70 Cal.App.4th 767, 785, 82 Cal.Rptr.2d 886.) The second of these exceptions is referred to as the inevitable discovery rule. "The core rationale consistentl......
  • The People v. Hoag
    • United States
    • California Court of Appeals
    • September 28, 2000
    ...for it; it would have been found anyway; or the path from the illegality to the 'fruit' is too 'attenuated.'" (People v. Neely (1999) 70 Cal.App.4th 767, The second of these exceptions is referred to as the inevitable discovery rule. "The core rationale consistently advanced by this Court f......
  • Rodgers v. Sargent Controls & Aerospace, No. A110023.
    • United States
    • California Court of Appeals
    • January 30, 2006
    ...Such defense is waived if not raised either by the pleadings or the evidence. [Citations.]' [Citation.]" (People v. Neely (1999) 70 Cal.App.4th 767, 782, 82 Cal.Rptr.2d 886, italics added.) "Where a party joins issue on a question previously litigated or voluntarily opens an investigation o......
  • People v. Morales, No. E032037.
    • United States
    • California Court of Appeals
    • October 27, 2003
    ...385; see Pen. Code, §§ 1017, 1041.) Similarly, collateral estoppel is waived if not raised in the trial court. (People v. Neely (1999) 70 Cal. App.4th 767, 782-783, 82 Cal.Rptr.2d 886; People v. Gillard (1997) 57 Cal.App.4th 136, 160, 66 Cal.Rptr.2d Defendant, however, also contends, in the......
  • Request a trial to view additional results
45 cases
  • People v. Hoag, No. C031031.
    • United States
    • California Court of Appeals
    • September 28, 2000
    ...for it; it would have been found anyway; or the path from the illegality to the `fruit' is too `attenuated.'" (People v. Neely (1999) 70 Cal.App.4th 767, 785, 82 Cal.Rptr.2d 886.) The second of these exceptions is referred to as the inevitable discovery rule. "The core rationale consistentl......
  • The People v. Hoag
    • United States
    • California Court of Appeals
    • September 28, 2000
    ...for it; it would have been found anyway; or the path from the illegality to the 'fruit' is too 'attenuated.'" (People v. Neely (1999) 70 Cal.App.4th 767, The second of these exceptions is referred to as the inevitable discovery rule. "The core rationale consistently advanced by this Court f......
  • Rodgers v. Sargent Controls & Aerospace, No. A110023.
    • United States
    • California Court of Appeals
    • January 30, 2006
    ...Such defense is waived if not raised either by the pleadings or the evidence. [Citations.]' [Citation.]" (People v. Neely (1999) 70 Cal.App.4th 767, 782, 82 Cal.Rptr.2d 886, italics added.) "Where a party joins issue on a question previously litigated or voluntarily opens an investigation o......
  • People v. Morales, No. E032037.
    • United States
    • California Court of Appeals
    • October 27, 2003
    ...385; see Pen. Code, §§ 1017, 1041.) Similarly, collateral estoppel is waived if not raised in the trial court. (People v. Neely (1999) 70 Cal. App.4th 767, 782-783, 82 Cal.Rptr.2d 886; People v. Gillard (1997) 57 Cal.App.4th 136, 160, 66 Cal.Rptr.2d Defendant, however, also contends, in the......
  • Request a trial to view additional results

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